The court held that the conclusion that a programstored only in RAM is sufficiently fixed is confirmed, not refuted, by the argument that it "disappears from RAM the instant the computer is turned off"; if power remains on (and the work remains in RAM) for only seconds or fractions of a second), "the resulting RAM representation of the program arguably would be too ephemeral to be considered 'fixed'."

As to the first fair use factor, the court invoked the Sony language about commercial uses being presumptively unfair, rejecting the ISOs public benefit argument.[1] The court held that the public benefit from fair use “typically involves the development of art, science, and industry, and not . . . the purely financial interest of customers.”[2]